Encounter epidemic

The process of investigation into crime and prosecution of criminals needs to be protected from interference by politicians, and international protocols should be followed to make sure fake encounters do not take place.

O.P. Singh, DGP, Uttar Pradesh. Encounters are part of crime prevention, he said recently.

“A CRIMINAL should have no human rights,” Kalyan Singh, Chief Minister of Uttar Pradesh. ( Outlook, July 20, 1998). The BJP made him Governor.

What the Director General of Police of Uttar Pradesh, O.P. Singh, said in New Delhi recently suggests that the State has had a settled practice in this matter. “Encounters are part of crime prevention. The fact is that this is not a state policy, but a police strategy. We do not call it encounter but police engagement. We are engaged with the criminals in a very professional and strategic manner. There have been about 62-63 police engagements in which the criminals have been killed, but rest of them have resulted in either arrest or apprehension” ( DNA , September 12, 2018).

Anuja Jaiswal’s report in The Times of India of September 21, 2018, indicates that a deliberate practice has been adopted. On September 20, a few local journalists in Uttar Pradesh’s Aligarh district “received a call from the police around 6:45 a.m. They were surprised to be asked to reach Machua village immediately if they were interested in ‘watching and filming a real encounter’. The news spread like wildfire and within 15 minutes, an entire troop of local and national journalists had lined up at the site, roughly 25 km from the district headquarters. The cops killed two men, Mustakim and Naushad, in the ‘encounter’ ... A TOI [ The Times of India ] photojournalist was part of the group that witnessed what must be India’s first encounter where the media was invited.”

Matters will get worse unless this practice is checked; of this, there is no sign. Bollywood has extolled “encounters” and “encounter specialists” in a good few blockbusters without a word of criticism from any quarter. It reflects Indian society’s indifference, if not approval. It all began in Punjab in the reign of Partap Singh Kairon. One of the volumes of Selected Works of Jawaharlal Nehru has his Note on encounters. I owe to my friend Ravi Nair of the South Asia Human Rights Documentation Centre in New Delhi a huge debt for helping me with documents on the subjects. His research is world class.

Minnesota Protocol

In 2017, Zaid Ra’ad Al Hussein, United Nations Commissioner for Human Rights, published, under his foreword, an updated version of the original U.N. Manual on the Effective Prevention of Extralegal, Arbitrary and Summary Executions of 1991, which through widespread usage became known as the Minnesota Protocol. Like the original, this updated version supplements the U.N. Principles on the Effective Prevention and Investigation of Extralegal, Arbitrary and Summary Executions (1989), which remains an important part of the international legal standards for the prevention of unlawful deaths and the investigation of potentially unlawful deaths. The original Minnesota Protocol was drafted through an expert process led by the Minnesota Lawyers International Human Rights Committee, motivated by an awareness among civil society actors that there was no clear international reference point at the time to act as either a practical guide for those tasked with conducting investigations into suspicious deaths, or as a norm against which to evaluate such investigations.

In the years since it was drafted, the Minnesota Protocol has been widely used as an education resource, as a practical guide and as a legal standard. Along with the Principles, it has been used by national, regional and international courts, commissions and committees, such as the European and Inter-American Courts of Human Rights, the African Commission on Human and People’s Rights and the U.N. Human Rights Committee.

In the years that followed, there have also been many welcome developments in international law, investigative practice and forensic science. Several resolutions of the U.N. Commission on Human Rights found that this valuable resource was in need of updating to retain and expand its relevance. In 2014, Christof Heyns, the U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions, initiated a process to revise and update the protocol and convened the expert meetings that led to the finalisation of this text.

Given the role of forensic experts themselves in devising the original version, the first U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions, S. Amos Wako, played a significant role in the process. “Special effort was also made to get inputs from States, other international organisations, other Special Rapporteurs, treaty bodies, NGOs [non-governmental organisations] and individual professionals. The collaborative approach has greatly enriched the text, and has, I hope, made more likely the widespread distribution of the revised standards to those experts and institutions who can most directly benefit from it.” The manual deserves a wide readership in India.

It contains a detailed Guideline on Investigation, interviews and many other topics. Needless to mention, admission to this country has been denied to any U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions.

Manipur killings

On July 4, 2018, Agnes Callaward, Special Rapporteur on extrajudicial, summary or arbitrary executions, and Michel Forst, Special Rapporteur on the situation of human rights defenders, urged India to complete thorough investigations into alleged killings by security forces in the State of Manipur after officials failed to meet a deadline set by the Supreme Court for inquiries into the cases. “We are extremely concerned that the delay appears to be deliberate, undue and unreasonable, and we condemn this lack of progress.” There is a U.N. Code on the rights.

In 2012, civil society groups submitted more than 1,500 cases of alleged extrajudicial killings in Manipur to the Supreme Court of India. In many of the cases, the deaths had been registered by the police as caused by the exchange of fire between security forces and armed groups or individuals. However, the families alleged that the cases were “fake encounters” and that the individuals had been killed intentionally.

In 2013, a commission appointed by the Supreme Court examined six cases selected at random and found in all cases that the conclusions of the security forces were not genuine and that none of the individuals killed had established criminal records. The Central Bureau of investigations (CBI) was ordered to probe a number of other cases.

“The Supreme Court has since set three deadlines for investigations into a number of cases to be completed, and three times these deadlines have not been met. In 2016, the Supreme Court set a deadline of 31 December 2017, for investigations to be completed in 89 cases. But, by the deadline, only 12 cases had been registered. The court set another deadline of 28 February 2018, for these cases, but by 12 March only 42 cases had been registered. Finally, the Supreme Court ordered investigations be completed and a report be filed by 30 June 2018, for 50 cases. But in a hearing last Monday [July 2, 2018], the CBI not only failed to submit the required report but also indicated it had completed investigations into only four cases.

“Some of these families have been waiting decades for these cases to be fully investigated. It is unacceptable that the CBI is failing to meet these deadlines and appears to lack good faith.”

The commission also expressed serious concerns about information that human rights defenders associated with the cases had faced harassment by the authorities and had even been attacked by unknown individuals. Sagolsem Menjor Singh, Ranjeeta Sadokpam and Salima Memcha, members of one of the civil society organisations involved in a case, had reportedly been harassed by the police. Shots were fired at the home of another supporter of human rights, Okram Nutankumar, by unknown individuals.

The reference was to the judgment delivered on July 14, 2017, by Justice Madan B. Loba for himself and Justice U.U. Lalit in the Supreme Court ( ExtraJudicial Execution Victim Families Association & Anr. vs Union of India& Others ).

Paragraphs 38, 39 and 44 of the judgment reveal a sorry state of affairs.

“38. It was submitted by the NHRC [National Human Rights Commission] that all its communications and Guidelines have remained only on paper and are not enforced by any State government. The submission of the NHRC was that to ensure that good quality reports are available, the Guidelines need to be strictly enforced. We agree with this submission and make it clear that the intention of the NHRC is to more effectively assist the criminal justice delivery system and avoid any factual controversies while respecting human rights. It is not as if the dignity of only living persons needs to be respected but even the dignity of the dead must be given due respect. Unless the communications and Guidelines laid down by the NHRC (which have been prepared after wide-ranging and detailed consultations) are adhered to, the respect and dignity due to the dead and the human rights of all of us will remain only on paper.

“39. Apart from a lack of concern for the communications and Guidelines issued by the NHRC or the absence of attention that they deserve, the difficulty faced by the NHRC is that even if there is half-hearted compliance, there are unexplained delays on the part of the State government in sending reports; the quality of the reports is certainly not up to the mark and as expected; sometimes some columns are left blank in the reports and on other occasions some documents are illegible, etc. All this, according to the NHRC, hampers its efficient functioning and causes delays in the implementation of the human rights of aggrieved persons. ...

“44. Considering that such a high-powered body has brought out its difficulties through affidavits and written submissions filed in this Court, we have no doubt that it has been most unfortunately reduced to a toothless tiger. We are of the clear opinion that any request made by the NHRC in this regard must be expeditiously and favourably respected and considered by the Union of India otherwise it would become impossible for the NHRC to function effectively and would also invite avoidable criticism regarding respect for human rights in our country. We direct the Union of India to take note of the concerns of the NHRC and remedy them at the earliest and with a positive outlook.”

There exists a comprehensive international instrument on the Principles on the Effective Prevention and Investigation of Extralegal, Arbitrary and Summary Executions, adopted by the Economic and Social Council in its resolution 1989/65 of May 24, 1989. Principle 4 sets forth the obligation of governments to guarantee effective protection through judicial or other means to individuals and groups who are in danger of extralegal, arbitrary or summary executions, including those who receive death threats.

The court’s ruling is a welcome break from the past. For, as the U.S. State Department’s Country Report on Human Rights Practices for 2001 remarked, “court action cases of extrajudicial killings is slow and uncertain”. The South Asia Human Rights Documentation Centre’s comprehensive backgrounder lists the following lapses: “The Indian government’s failure to ensure the adequate investigation of allegations of extrajudicial killings. Legal protection afforded to perpetrators. Failings of the judicial system in holding perpetrators to account. Inadequacy of compensation available to victims’ families. The Indian government’s failure to ensure the accountability of the army and security personnel. The Indian government’s actions in effectively authorising the commission of extrajudicial killings.”

The International Commission of Jurists opined that “the deliberate killing of people in police or military custody is simple murder” ( Human Rights in Kashmir, Report of a Mission 1995, page 39). To describe such crimes in Kashmir would need a book.

The state has failed in these respects—investigation, prosecution and punishment. The crucial question is why the police resorted to this crime and why society has acquiesced in it. The reason are not hard to seek: Even honest policemen were disgusted at the state’s failure to support them; incompetent, if not corrupt, prosecutions; “the laws of delays”; and a magistracy which was slow, incompetent or simply corrupt. The police decided to take the law into their own hands—true, not for these reasons alone.

The people, harassed by growing crime, began to welcome encounters as a swift cure for the crimes. There is also another factor: the nexus of Ministers/politicians with criminals, which ensures immunity for criminals. We need to tackle crime at all these levels, beginning with giving the police full protection against Ministers’ interventions. It was one such interference by the Home Minister of Bombay, Morarji Desai, which protected V.D. Savarkar and cost Gandhi his life. The J.L. Kapur Commission censured him.